As of August 2010, fourteen states and the District of Columbia have medical marijuana laws. According to http://medicalmarijuana.procon.org another 8 stated have legislation and or referendums in the works.

How will this affect employers when employees are using the drug legally under state law?

At least for now, the drug remains illegal under federal law regardless of the reasons for its use.   As a result, the rules around disability anti-discrimination are being tested in courts across the country as employees who legally smoke pot for a disabling condition are terminated when they test positive on drug tests.  This is leaving many tough questions open for the courts as well as employers  to determine – how far are we willing to mellow out about marijuana?

Businesses certainly have a legitimate safety and production interests in keeping their employees from being stoned while working, regardless of the legal or illegal nature.  And employees with disabilities have the right, in at least fourteen states, not to be discriminated against for taking (or toking, as the case may be) their legally prescribed medication.  So the problem is balancing these two interests.  Complicating the issue is that unlike testing for alcohol, methadone, or barbiturates, tests for marijuana detect usage in the past 2 days to 2 months, depending on the type of test, amount of body fat, and the amount of use.  That means that a positive marijuana urine test is not a good indicator of current impairment.

For most drugs, it’s up to the person’s physician to determine if the drug impairs the ability of the employee to safely perform their job duties.  If it can be done while taking a prescribed painkiller, for example, then an employer may need to reasonably accommodate usage even during work hours.  With medical marijuana, it’s not so easily resolved.  If usage could have been two months ago, after work hours, then an employer has a hard time making the safety or productivity argument.

So far, both California and Oregon have relied on the fact that marijuana is still a federal crime to use, in determining that medical marijuana users have no special protection, do not need to be accommodated, and can refuse to be hired or be fired for violation of an employer’s no drug use policy.  See, Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, BOLI 3004 (Or., April 14, 2010); Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008).

On the other end of the spectrum, Michigan’s medical marijuana statute contains a specific provision prohibiting discrimination against marijuana users.  See Mich. Comp. Laws § 333.26424(4)(a).  The first case testing this law is still being decided in the Michigan court system.   It involves an employee of a large retailer who was diagnosed with an inoperable brain tumor and sinus cancer, who was fired for failing a post-accident drug test.   The employee claims he was not impaired at the time of the accident, and only used medical marijuana after work hours.  Notably, the employee had recently received the “Associate of the Year” award.  So it remains to be seen how much protection will be granted, and whether the Michigan Supreme Court will follow the lead of California and Oregon.

What is clear in this still-developing area of the law is that employers do need to pay attention to this issue, and consider how their drug policies will interact with changing laws.

Here is a list of the states that are already Medical Marijuana friendly and we urge readers to stay informed and not assume that adverse actions such as discipline and termination are cut and dry when it comes to Marijuana as we go forward.

As of Aug 2010- 14 states include Washington DC,
Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington State.

We would love to hear the  consensus of our readers and particularly if you are in one of the 14 states.  Do any of you have any experience of employees showing up impaired on Marijuana recently?

Do you have a “drug testing” policy? You can share your reply at the bottom of this article.

This article was written by Allison Shulman J.D.
Allison is a senior adviser to CEDR’s Solution Center

Visit our website, Center for Employment Dispute Resolution (CEDR) for more information. Questions about this subject can be sent to info@lawsuitfreeworkplace.net or call Allison Shulman directly at 602 476 1418

This information is Human Resource Guidance and is not intended to be legal advice

What is the responsibility of the practice to hold a job for extended absence such as pregnancy or major surgery? When they returned, can they be moved to another position? Does the salary have to stay the same? How do key positions such as OM and hygienists fit in this scenario?
What you are referring to is commonly called a leave of absence policy.

I am assuming your business has less than 50 employees so that the FMLA (Family Medical Leave Act) does not apply to you. I am also assuming you did not/have not borrowed or downloaded a handbook policy that inadvertently applied the FMLA rule to you.

Because this subject is so important and there are so many rules, the need for customization for your state and number of employees plays a huge role. This means I cannot give you “the one”  answer that fits all circumstances but I can provide some in depth general guidance.

1) While you are not usually required to grant a leave of absence for things like surgery, injuries, time away to care for a family member and even pregnancy, not having a leave of absence policy is extremely dangerous. The reason is that many lawsuits come out of not treating employees consistently in response to leave of absence requests. You say no to one and yes to another. You allow one employee 6 months for Pregnancy leave and tell another she can only have 2 months. Any of these actions can easily be turned around and used against you in a number of ways.

We most often advise two leave of absence policies.
a) Leave of absence for temporary disability(which covers pregnancy)
b) Leave of Absence, all others.(none disability)

2) Pregnancy as a disability policy and leave of absence often blend together and must be addressed, state by state. Even if you don’t have a fixed period of leave mandated by your state, you still should consider having some reasonable pregnancy leave policy that doesn’t have a discriminatory impact on pregnant employees. ( Do it your-selfers beware!)
Note**** If you have fifteen or more employees the federal government has some rules that apply to all employers with pregnant employees.
Note**** Many states have lowered the 15 employee threshold and have their own rules.

3) It doesn’t matter the position- office manager, associate Doctor, receptionist, Hygienist, the leave of absence policy applies the same across the board for all qualified temporary disabilities. By the way, breaking a leg while on a ski trip is not ordinarily considered a “temporary disability.” Of course, if you work on the ski slope where you broke your leg, we have a different answer.

4) If they have a qualified disability or pregnancy, you should return them to the same or similar position, with the same/similar pay. There may be exceptions for business necessity, like you laid off half your work force at the same time, so there was no position to come back to. But be careful because these decisions (transfers, pay lowering, demotions) are considered employment decisions that can be used to establish a retaliation claim, as much as a termination.

Key things:
1) You are not required to allow for disability leave if you have less than 50 employees.
2) Nonetheless, we advise our members to establish one in their handbook
3) When you don’t establish one and you treat two people differently, it can get you in trouble.
4) When you establish the rule properly, you also get to establish all sorts of parameters that make the entire process easy to administer and protects you and your employees.
5) When you have no rule, you lose all of your protections but your employee continues to be protected.

Visit our website, Center for Employment Dispute Resolution (CEDR) for more information. Questions about this subject can be sent to info@lawsuitfreeworkplace.net or call Paul Edwards directly at 602 476 1418

This information is Human Resource Guidance and is not intended to be legal advice

This question and the answer below was  prompted by CEDR’s webinar – How to Bullet Proof Your Employee Handbook. Click on the link to view a live rebroadcast. It is available for FREE on demand.

Answer This is a rather stupid, yet harmless rule that currently is NOT being enforced by the Federal Trade Commission against physicians/dentists. It is officially “on hold” until December 31, 2010, to allow Congress to address certain amendments to the rule which may include an exclusion of physicians/dentists with 20 or less employees. I know you are all getting lots of sales stuff and compliance program offers. I do believe that you will need to address the red flag rule on some level once legislation is complete, but at this time, it is a non issue. Read more on the FTC’s own webpage at http://www.ftc.gov/opa/2010/05/redflags.shtm
Note: If you are a member of The ADA, they also has a pretty good sample policy you can implement for free.

Visit our website, Center for Employment Dispute Resolution (CEDR) for more information. Questions about this subject can be sent to info@lawsuitfreeworkplace.net or call Paul Edwards directly at 602 476 1418

This information is Human Resource Guidance and is not intended to be legal advice

This question and the answer below was  prompted by CEDR’s webinar – How to Bullet Proof Your Employee Handbook. Click on the link to view a live rebroadcast. It is available for FREE on demand.

Answer: This is a great question and it gets into wages!
In short- allow them to let the phone go to VM if for instance, they want to go to a movie or maybe they’re in the car or a child is crying, as the phone rings. The important thing is that you do not control them by virtue of “being on call to answer the phone.” Then, be sure to pay them at least minimum wage for all time actually spent on calls, scheduling appointments.

An example of an employee that is under the control of the employer might be:  an employee who is an air conditioning repair person  is told they must be available to answer  service calls from 7am to midnight on Saturday and Sunday. Further, they are required to respond and be on site within 30 minutes. This is likely  an employee who is on call and under substantial control of the employer. They must answer the phone, stay within thirty minutes of their assigned area, cannot go into a movie and turn off the phone and therefore will need to be compensated for  all on call time.

Incentive to answer on the first ring is the key: Here is one example of many ways you might incentivize taking home the cell phone and answering the calls:
I will pay you $5 for answering the call and/or promptly returning a message (no matter the outcome). I will pay you an additional $2 if they set an appointment, and I will pay you another $10 if they show up. That would be a total of $17 for taking five minutes to answer the call.

In the end, the important things to remember are that you cannot allow the phone to control them and you must pay at least minimum wage for answering the calls.

Visit our website, Center for Employment Dispute Resolution (CEDR) for more information. Questions about this subject can be sent to info@lawsuitfreeworkplace.net or call Paul Edwards directly at 602 476 1418

This information is Human Resource Guidance and is not intended to be legal advice

This question and the answer below was  prompted by CEDR’s webinar – How to Bullet Proof Your Employee Handbook. Click on the link to view a live rebroadcast. It is available for FREE on demand.

Question
My wife is thinking about possibly working in the office, if she would work 1-2 days as a front desk person, the existing person would have to cut their hours, is there any best way to approach this?

Answer
There are a couple of approaches and I would be happy to discuss the options and pitfalls with you in person by phone. But the simple answer is; it is OK to cut hours and you are the boss- but here is an example when it is not OK. An employee comes to you and complains (e.g., about wages/how you pay vacation time/sexual harassment/asks for a legitimate disability accommodation/complains about racial discrimination against themselves or another) – and you then cut their hours or reposition them. This kind of action can be easy grounds for a retaliation claim, merely because it happens close in time to the complaint.

As an approach I would recommend that you tell the person who is going to be effected by the change,  in advance of cutting their hours. Give them a chance to adjust and during that conversation you will probably be able to assess if they are going to go with the flow or look for full time work. You should understand that they may need to work full time and that they may not be happy about the change and may quit to work elsewhere with little or no notice.  So I must ask, is the new person(your wife in this instance) that is taking over part of the hours prepared to work full time?

This may require a reset on your part if the employee finds work elsewhere. During the reset you can hire another person and make it clear that it is a part time position.

One additional note: In most instances and in most states – when you cut the hours and even if the employee stays on part time, you should expect them to apply for unemployment benefits for the partial loss.

Visit our website, Center for Employment Dispute Resolution (CEDR) for more information. Questions about this subject can be sent to info@lawsuitfreeworkplace.net or call Paul Edwards directly at 602 476 1418

This information is Human Resource Guidance and is not intended to be legal advice

Answer: Here’s three rules you can embrace during terminations:

1) Whenever possible- create a written record before the termination of performance issues.

2) Almost, always(99.999999%) provide a proper termination letter that reflects a) the reason for termination; b) shows that you understand the laws about cobra extension; c) explains how the last paycheck and any remaining wages due will be paid; and d) re-enforces and reminds them of the proper confidentiality agreement and their ongoing obligations. You should also properly disengage him/her as a patient if you are a medical or dental professional.

3) Now to your question, it is best practice to always have another member of management in the room as a witness to a termination. Another employee? Rank and file? NO! In almost all instances, if the O.M. is terminating, we advise the Doctor/owner of business or another member of management be there, in private. Don’t do it alone if possible and avoid pulling an employee out of the hallway as witness.
There is a fantastic free downlaodable publication on our home page called “The Toolkit.” It contains tons of related and additional tools that support you. Get the toolkit and free monthly training from CEDR at www.cedrsolutions.com

P.S. Both your wife and your office manager should be on your side!

Questions about this subject can be sent to info@lawsuitfreeworkplace.net
Paul Edwards can be reached at 602 476 1418
Our Website is www.cedrsolutions.com

This information is Human Resource Guidance and is not intended to be legal guidance

The short answer is yes and no. But mostly no.
Yes, with caution, and only if you first have a properly written bonus policy. (Note: I didn’t say agreement). Let me be clear- there is a 99% chance that if you (yourself) draft the bonus policy to allow for you to withhold as a punitive measure, you will get it wrong and violate federal and state labor and wage rules. This is a HOT TOPIC of enforcement with the Department of Labor. AGAIN- Getting it wrong can be a “wage violation” which is huge and can lead to triple damages. The following should give you two “aha!” moments.

Aha#1
You need a bonus policy that is properly crafted to allow for forward-going exclusion from eligibility, as opposed to a penalty or “losing” your bonus. A bonus is a wage, and once someone does what you told them to do to earn the bonus, you have to give it to them. Even a extremely well written bonus exclusion policy is a great way for an employee to get a complaint with the Department of Labor going. YOU DO NOT WANT THAT, even if you can win.

Aha #2
Plus, I question the effectiveness of punitive withholding or even future exclusion as a method of getting what you need from an employee. If I’m Sally and my job is to help fill the hygiene schedule and answer the phones, and you take my bonus away for the next week (even for a great reason we both agree on), I’m probably going to subconsciously and maybe even in-your-face, punish you by doing the minimum amount to not get fired during this time. At the very least, I’m not going to be incentivized to excel. This just hurts the practice and creates a space for upset, not a path for improvement. That being said, a temporary period of ineligibility a day or two, can work wonders to get an employee to remember things they normally can’t seem to get right, like punching out at the end of the day, because it hits them where it counts, in the pocket or working unauthorized overtime.

Here is more info on bonuses from CEDR’s Solution Center:
CEDR Two Minute Trainer on Bonuses

Questions about this subject can be sent to info@lawsuitfreeworkplace.net
Paul Edwards can be reached at 602 476 1418
Our Website is www.cedrsolutions.com

This information is Human Resource Guidance and is not intended to be legal guidance

Note that many of the attendees were Dental and other medical offices but the guidance works for all types of businesses.

If you would like to view the free “on demand” rebroadcast of the How To Bullet Proof Your Employee Handbook Webinar go t0 http://lawsuitfreeworkplace.net/index.php?option=com_content&task=view&id=360&Itemid=253 The broadcast contains additional support materials at no fee.
Question (1 of 7)
Can we do a skill assessment interview–different than a working interview?

Most often when I am asked to answer this question, the context is: Can we have a hygienist(s) come in and work to see how s/he is with patients and skills, prior to hiring them?

Answer: Yes you may do a skill assessment, but the technical issue here is that it cannot be to the “benefit” of the practice. In other words, if they are working on your patients or talking to your patients who are paying you for your services, you are not only subjecting yourself to liability, but the applicant may now be considered your employee, with all the rights and obligations that go along with it. There’s no free labor, even for an hour, a few hours, or a day.

One way to address this is by using written or computerized aptitude tests. Another way might be to have the hygienist clean your or another employee’s teeth. Yet another common way is to hire the person on a contract basis for a fixed fee, for a few hours, or one day. Let them choose a schedule that works for you. I caution you about letting this contractor status structure stay in place for more than a day or two though, and you should not set your fee more than $600, which triggers your obligation to report. Regardless, you should have them acknowledge your confidentiality and binding arbitration policies for Independent contractors prior to working. Don’t forget to check licenses and insurance where applicable.

Here is more on Working Interviews do’s and do not’s.
2 minute Trainer on Working interviews

Questions about this subject can be sent to info@lawsuitfreeworkplace.net
Paul Edwards can be reached at 602 476 1418
Our Website is www.cedrsolutions.com

I’m interested in knowing if you do working interviews and if this guidance was helpful so please post your comments.

This post is Human Resource guidance and is not legal advice.

Time’s online magazine just posted the following article by attorney Adam Cohen- The subject: New York Bill Targets Abusive Bosses. http://news.yahoo.com/s/time/20100721/us_time/08599200535800

By the way, the shocking part of the above article is in the “posted comments” which trail the actual article itself. Not surprisingly, they are overwhelmingly in favor of bullying legislation that would make employers pay.

16 other states are considering “Bullying” legislation. An Indiana man recently won a 350k lawsuit using the “bullying” argument.

This highlights the need for all employers to understand that there are multiple tools which when contained  within a good employee handbook,  and when implemented in advance, can and should address bullying and other poor behaviors in the work place.

1) Have a required reporting procedure(if it is going on, your employees must tell you and give you an opportunity to resolve it, before they can sue.)
2) Have a written policy in place that describes and prohibits violence and other forms of harrassment, such as bullying in the workplace. AND REQUIRE EMPLOYEES TO REPORT!

3) When all else fails make sure you have a legitimate and enforceable ADRP policy that ends in binding arbitration. This goes back #1. Did I mention you should require your employees to report these kinds of concerns in your handbook?

Do you have anything in place that might help you prevent this kind of lawsuit? I’d like to know- feel free to comment.

Paul
www.cedrsolutions.com

P.S  Want a better understanding of binding arbitration(ADRP) in the workplace? Here is a free and comprehensive 10 page report ADRP REPORT WIP

Related Articles

• New Laws Target Workplace Bullying (time.com)

I’ve just spent three days in Austin, TX with a master mind group on marketing. In my mind, marketing is the relationship we here at CEDR,  and you as business owners, create with our members(current and potential). During the master mind one thing that came up big was called “Moving the free line.” This means that you are willing to give away value- and the more you can give, the better! (by the way- no one was advocating going Buddha and giving up our income or moving into huts)

One of the basic principles I got from key note speaker Tim Ferris; is to not lose sight of what “Value” is. Value is NOT money, things, or bank balances. In fact, when you strip all of those away, “value” or your “true net worth” is in the relationships you have with people.

Here is one for you. Order and read Tim Ferris’ book- http://www.fourhourworkweek.com/

He also has a great blog at http://www.fourhourworkweek.com/blog/

Great read, great speaker, and a philosophy I think we can all embrace. I hope you ENJOY!

Paul

cedrsolutions.com
602 476 1418